As Is Where Is Clause in Queensland Property Contracts

Plain English Definition

"As Is Where Is" means that a buyer agrees to purchase the real property in its current physical state and legal condition, accepting all patent and latent defects, dilapidation, unapproved alterations, and boundary irregularities without any obligation on the seller to repair, rectify, or clean the site prior to settlement. In a Queensland property contract, inserting this term fundamentally curtails the buyer's rights to demand pre-settlement repairs, claim compensation, or terminate for physical imperfections. While standard provisions within the standard REIQ Contract provide specific baseline protections, an express "as is where is" special condition shifts the burden of physical risk entirely onto the purchaser under the doctrine of caveat emptor (buyer beware).

Who This Affects

• Property Buyers: Individuals who must accept full financial responsibility for rectifying illegal building works, pest infestations, structural failures, or site rubbish discovered before or after settlement.
• Property Sellers: Vendors seeking to exit an estate, deceased estate administration, mortgagee repossession, or neglected property without exposure to breach-of-contract claims, repair requisitions, or post-settlement litigation.
• Mortgage Lenders and Valuers: Secured financiers who may reduce their valuation, impose stringent retention amounts, or refuse mortgage drawdown if structural or council compliance issues undermine the property's security value.

The Danger Zone: Buyer's Risk

• Unapproved building works and structures: Sellers frequently introduce an "as is where is" clause to avoid liability for uncertified decks, enclosed verandas, or converted carports built without Brisbane City Council or regional local authority approval, potentially exposing the buyer to council enforcement notices or costly retrospective approvals costing upwards of $10,000 to $30,000.
• Severe structural degradation and active pests: The clause prevents the buyer from compelling the seller to treat active subterranean termites, replace degraded stump footings, or fix roof truss movement, forcing the buyer to fund emergency engineering rectifications immediately post-settlement.
• Rubbish, hazardous waste, and abandoned chattels: Under standard REIQ conditions, a seller must give vacant possession free of debris; however, an aggressive "as is where is" special condition can negate this duty, leaving the buyer with the financial burden of clearing abandoned car bodies, derelict furniture, or hazardous materials like friable asbestos at a cost of thousands of dollars.
• Mortgage rejection or insurance refusal: Lenders may instruct panel valuers to inspect the asset; if the valuer flags uncertified structural additions or severe water ingress sold under an unconditional "as is where is" umbrella, the credit provider may revoke formal loan approval, placing the buyer's 10% deposit at risk.
• Statutory and boundary anomalies: Encroaching retaining walls, boundary fences misaligned by several hundred millimetres, or unregistered service infrastructure traversing the parcel can become the buyer’s permanent, uncompensated legal headache.
• Loss of standard REIQ contractual termination rights: A bespoke special condition explicitly asserting an "as is where is" status will generally take precedence over the printed standard conditions of the REIQ contract, disabling the buyer’s capacity to issue repair notices or seek price reductions prior to the settlement date.

What to Check Before Signing

1. Commission a thorough building and timber pest inspection: Engage a licensed Queensland Building and Construction Commission (QBCC) inspector to probe every accessible and concealed element of the dwelling, paying particular attention to subfloor framing, load-bearing walls, roof voids, and active moisture readings.
2. Conduct comprehensive local council searches: Run a full town planning certificate and building records search through the relevant local council to cross-reference every approved structure on the survey plan against the actual physical improvements on site.
3. Engage a registered cadastral surveyor for an identification survey: Confirm that boundary lines correspond precisely to the registered Title Plan, ensuring fences, eaves, outbuildings, and neighbouring driveways do not encroach across lot boundaries.
4. Scrutinise standard contract warranties and special condition drafting: Instruct your conveyancer or property solicitor to review the contract to see whether the "as is where is" clause impermissibly strikes out standard seller warranties regarding title encumbrances, statutory orders, or unapproved infrastructure.
5. Secure unconditional building insurance cover: Obtain written insurance quotes before executing an unconditional contract; home insurers routinely decline coverage or apply wide-ranging exclusions to dwellings burdened by major uncertified alterations or existing structural disrepair.

Key Queensland Rules

In Queensland, residential conveyancing typically relies on the standard REIQ Contract for Houses and Residential Land (or Units: Residential Lots). Under the Property Occupations Act 2014 (Qld), buyers generally benefit from a 5-business-day statutory cooling-off period, subject to a termination penalty of 0.25% of the purchase price if invoked. Furthermore, the standard REIQ conditions contain limited vendor representations regarding compliance with statutory notices issued under legislation such as the Building Act 1975 (Qld) and the Planning Act 2016 (Qld). However, when a vendor inserts an express "as is where is" special condition, standard condition clauses that govern property condition and error or misdescription can be legally overridden. While the seller must still pass clear freehold title under the Land Title Act 1994 (Qld) and cannot engage in actionable misleading or deceptive conduct under the Australian Consumer Law, the clause successfully insulates the vendor from common law claims regarding physical state, quality, or fitness for purpose.

Real-Life Queensland Scenario

Elena contracted to purchase a character Queenslander in South Brisbane for $1,420,000, signing an REIQ Contract containing a vendor-drafted special condition stating the property was acquired "as is where is, without warranty as to council approvals or structural integrity." Eager to secure the home in an aggressive market, Elena waived her right to include a standard building and pest condition. Three weeks following settlement, an intense subtropical storm caused severe internal flooding through an unsealed, unapproved ground-floor slab conversion that lacked council certification. Elena engaged a private structural certifier and geotechnical engineer, discovering the conversion violated Brisbane City Council drainage overlays and presented serious subsidence risks. Rectifying the foundation, underpinning the external walls, and lodging retrospective operational works applications with council cost Elena $84,500 in direct outlays—costs she had no legal power to recover from the vendor due to the contractual waiver she executed.

A clear pre-purchase council records search would have exposed the unapproved status of the slab before the contract became legally binding.

Frequently Asked Questions

Does an "As Is Where Is" clause override the statutory cooling-off period in Queensland?

No. The 5-business-day statutory cooling-off period created by section 166 of the Property Occupations Act 2014 (Qld) applies to all relevant residential contracts unless the buyer explicitly waives or shortens it using an approved Form 32A Lawyer's Certificate or purchased at auction. A special condition stipulating an "as is where is" purchase affects property quality and contractual dispute rights, but it cannot lawfully extinguish the statutory cooling-off protection. If a buyer terminates under the cooling-off provisions, the seller must refund the deposit less the statutory penalty of 0.25% of the purchase price within 14 days.

Can a seller use this clause to conceal known fraudulent defects?

No. While an "as is where is" clause protects a vendor from contractual claims regarding general physical deterioration and non-disclosed patent defects, it does not provide immunity against fraudulent misrepresentation or active concealment. If a seller deliberately disguises severe defects—such as wallpapering over catastrophic, actively concealed structural cracking—or commits statutory fraud, the buyer may seek equitable rescission or damages in the Supreme Court of Queensland. Proving active fraud is notoriously expensive and legally onerous, meaning prevention through professional inspection remains paramount.

Will an Australian bank finance a home purchased under this clause?

It depends entirely on the degree of physical disrepair and the valuer's formal report. Lenders assess whether the property serves as adequate, recoverable security for the loan amount in the event of borrower default. If an "as is where is" clause applies to a dwelling that is uninsurable, structurally unsound, or subject to immediate demolition notices from a local authority, the lender’s valuer will note this on the panel valuation, frequently causing the bank to decline finance or demand a significantly reduced Loan-to-Value Ratio (LVR).

What happens if the home is damaged between signing the contract and settlement?

Under Standard Condition 8 of the standard REIQ Contract, the property remains at the buyer’s risk from 5:00 pm on the next business day after the contract date. If a house is destroyed or damaged before settlement so as to be unfit for occupation, the buyer may have specific rights under section 64 of the Property Law Act 1974 (Qld) to rescind the contract before settlement. However, because an "as is where is" clause can conflict with standard clauses, precise drafting determines whether the buyer retains these statutory remedies or assumes immediate risk for intervening physical damage. Buyers must secure comprehensive building insurance immediately upon contract execution.